Davis v. Fechtel

                       REVISED, August 13, 1998

                    UNITED STATES COURT OF APPEALS

                        FOR THE FIFTH CIRCUIT


                          __________________

                               97-10818
                          __________________



     SAMUEL JOHN MAJOR DAVIS, JR.,
                                           Petitioner-Appellant,

                                versus

     VINCENT J. FECHTEL, JR., Commissioner
     of the United States Parole Commission;
     VICTOR M. F. REYES, Commissioner of the
     United States Paroles Commission; G.
     MACKENZIE RAST, Commissioner of the
     United States Parole Commission,

                                           Respondents-Appellees.

            ______________________________________________

         Appeal from the United States District Court for the
                      Northern District of Texas
            ______________________________________________
                            August 7, 1998

Before DAVIS, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.

BENAVIDES, Circuit Judge:

     Samuel John Major Davis, Jr., a federal prisoner, appeals the

district court’s dismissal of his 28 U.S.C. section 2241 habeas

petition as an abuse of the writ.1       This case is now before us on

a motion for leave to proceed in forma pauperis.             We write

     1
         Davis’s primary argument on appeal is that the district
court erred in construing his mandamus action as a section 2241
habeas petition. As discussed below, the district court properly
construed Davis’s petition as one for habeas relief under section
2241, rather than a petition for mandamus under 28 U.S.C. section
1361.
principally to decide an issue not yet addressed in this circuit,

whether      the   Prison   Litigation       Reform    Act   (hereinafter        PLRA)2

applies to section 2241 habeas petitions. Concluding that Congress

did not intend for the term “civil action” to include section 2241

habeas       proceedings,   we   find    that    the    PLRA    does    not   apply.

Additionally,       we   determine   that      the    district    court    properly

dismissed Davis’s third petition as an abuse of the writ.                     Because

Davis has failed to present a nonfrivolous issue on appeal, we deny

his motion for leave to proceed in forma pauperis.

     I.        PROCEDURAL HISTORY

     In 1994, Davis filed a section 2241 habeas petition alleging

that the United States parole commission had failed to comply with

its own regulations and federal statutes in denying him parole.

The district court denied his petition, and this Court affirmed on

the merits.         Davis   subsequently       filed    a    second    section    2241

petition, which the district court dismissed as an abuse of the

writ.       On appeal, this Court dismissed it as an abuse of the writ.

     Undaunted, Davis filed a third suit (styled as a mandamus

under 28 U.S.C. section 1361), purporting to seek only a directive

to the individual members of the parole commission to correct

errors that he complained of in a previous petition.3                     The court

        2
         Congress enacted the PLRA as Title VIII of the Omnibus
Consolidated Rescissions and Appropriations Act of 1996, Pub. L.
104-134, 110 Stat. 1321 (1996). Section 804 of the PLRA amends 28
U.S.C. section 1915 to change the procedures prisoners must follow
when seeking to proceed in forma pauperis in civil actions.
        3
         Davis initially filed this action in the United States
District Court for the District of Columbia, which construed the
action as one seeking habeas relief, and transferred the case to

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below construed Davis’s petition as a section 2241 habeas petition

and concluded that because the grounds for relief had previously

been determined to constitute an abuse of the writ, the instant

petition also was an abuse of the writ and dismissed the petition

with prejudice.

     Davis then moved to proceed on appeal in forma pauperis.

After reviewing Davis’s inmate trust record and observing that

Davis had received more than $1200 into his inmate account in

recent months, the district court denied the motion, concluding

that Davis could afford the $105 appellate filing fee.        In its

order of denial, the district court determined that the PLRA was

not applicable to a section 2241 habeas petition.   Before us now is

Davis’s “motion for leave to file appeal without prepayment of

filing fee and to pay the $105 filing fee in (4) installment

payments.”

     II.   ANALYSIS

           A.     HABEAS OR MANDAMUS ACTION

     Davis strenuously argues that the district court erred in

construing his mandamus action as a section 2241 habeas petition.

This Court has held that a court may liberally construe a pro se

petitioner’s pleading and treat it as a habeas corpus petition,

where appropriate.    See Russell v. Knight, 488 F.2d 96, 97 (5th Cir

1973) (construing mandamus petition as a section 2254 habeas

petition).

     Mandamus is, of course, an extraordinary remedy. In re Stone,


the Northern District of Texas.

                                   3
118 F.3d 1032, 1034 (5th Cir. 1997).                To obtain a mandamus order,

a petitioner must establish “(1) a clear right to the relief, (2)

a clear duty by the respondent to do the act requested, and (3) the

lack of any other adequate remedy.”              Id.

     Contrary      to    Davis’s      contentions,     his   challenge      directly

implicates the duration of his present confinement.                      He requests

that a mandamus issue to order the parole commission to perform an

act that would reduce his sentence.                    As such, his claim is

challenging the execution of his sentence and therefore is a

section 2241 claim.         United States v. Tubwell, 37 F.3d 175, 177

(5th Cir. 1994) (challenging execution of sentence is section 2241

claim).

     Indeed,      the    District     of    Columbia   Circuit     has    held   that

mandamus was not the appropriate avenue to redress a federal

prisoner’s challenge to his parole eligibility date and that

section   2241    provided      the    exclusive     remedy.       Chatman-Bey     v.

Thornburgh, 864 F.2d 804, 808-810 & n.5, 814 (D.C. Cir. 1988).                     We

need not determine today, however, whether habeas corpus is the

exclusive remedy for a federal prisoner bringing a challenge to the

execution of his sentence. Clearly, habeas corpus was available to

Davis,    and    his    abuse   of    the   Great    Writ    did   not    render   it

unavailable or inadequate.              Thus, the district court properly

construed Davis’s pleading as one falling under section 2241.

            B.     WHETHER THE PLRA APPLIES

     Next, we must determine whether the PLRA’s financial screening

and assessment requirements apply to 28 U.S.C. § 2241 habeas


                                            4
proceedings.   The PLRA amended 28 U.S.C. § 1915 to impose filing

fee obligations on a prisoner who “brings a civil action or files

an appeal in forma pauperis.”    § 1915(b)(1).4   Here, the question

is whether a § 2241 habeas proceeding is a “civil action” within

the meaning of the PLRA.

     When interpreting a statute, we first look to its plain

language.   Sutton v. United States, 819 F.2d 1289, 1294 (5th Cir.

1987).   “Specific words within a statute, however, may not be read

in isolation of the remainder of that section or the entire

statutory scheme.”    Id. at 1293.

     It is true that habeas corpus proceedings are technically

“civil actions.”     Nevertheless, the Supreme Court has made clear

that that “label is gross and inexact” and that “the proceeding is

unique.”    Harris v. Nelson, 394 U.S. 286, 293-94, 89 S.Ct. 1082,

1087 (1969).   We must presume, of course, that Congress was aware

of the construction courts had given to the terms in the statute.

Sutton, 819 F.2d at 1294.

     Although this Court has not addressed the precise question of

whether the PLRA applies to section 2241 proceedings,5 we have

determined that actions brought under 28 U.S.C. §§ 2255 and 2254

are not “civil actions” for the purposes of the PLRA.         United

     4
        The prisoner must “pay the full amount of a filing fee.”
The full amount is not required upon filing. The court assesses a
partial filing fee and certain monthly payments are to be made in
accordance with § 1915.
     5
       In Ojo v. I.N.S., 106 F.3d 680 (5th Cir. 1997), a § 2241
proceeding, we determined that the PLRA did not apply because the
petitioner, a detainee who was about to be deported, was not a
“prisoner” within the meaning of § 1915(a)(2).

                                     5
States v. Cole, 101 F.3d 1076    (5th Cir. 1996) (§ 2255); Carson v.

Johnson, 112 F.3d 818 (5th Cir. 1997)(§ 2254). In Cole, this Court

looked to the holdings of three other circuits which had recognized

that although habeas proceedings are technically “civil actions,”

there are several considerations that counsel against applying the

PLRA to them.6     The Third Circuit stated that habeas proceedings

were of a hybrid nature, and a plethora of case law demonstrated

that habeas proceedings were not necessarily encompassed by the

phrase “civil action.” Santana, 98 F.3d at 754-55.

     Further, we found the following analysis from the Second

Circuit persuasive:

             First, the [PLRA] was aimed primarily at
             prisoners’     suits    challenging     prison
             conditions, many of which are routinely
             dismissed as frivolous. There is nothing in
             the text of the [PLRA] or its legislative
             history to indicate that Congress expected its
             filing fee payment requirements to apply to
             habeas corpus petitions. Second, we note that
             Congress has endeavored to make the filing of
             a habeas corpus petition easier than the
             filing of a typical civil action by setting
             the district court filing fee at $5, compared
             to the $120 applicable to civil complaints . .
             . . Third, Congress gave specific attention to
             perceived abuses in the filing of habeas
             corpus petitions by enacting Title I of the
             AEDPA.7    That title imposes several new
             restrictions on habeas corpus petitions, but
             makes no change in filing fees or in a

         6
         Reyes v. Keane, 90 F.3d 676 (2d Cir. 1996); Santana v.
United States, 98 F.3d 752 (3d Cir. 1996); Martin v. United States,
96 F.3d 853 (7th Cir. 1996).
     7
        Title I of the Antiterrorism and Effective Death Penalty
Act (hereinafter AEDPA) of 1996, sections 101-108, Pub.L. No. 104-
132, 110 Stat. 1214, 1217-26 (1996) (to be codified at 28 U.S.C.
sections 2244-2266; Fed.R.App. P. 22) became effective two days
prior to the PLRA.

                                   6
               prisoner’s obligation for payment of existing
               fees.

Cole, 101 F.3d at 1077 (quoting Reyes, 90 F.3d at 678) (footnote

added).

        Additionally,    the   Seventh       Circuit   observed   a   practical

difficulty with applying the PLRA to habeas proceedings.                  If a

prisoner previously had filed three frivolous suits, he could not

file a petition for habeas relief without paying the full filing

fee.8       “This result would be contrary to a long tradition of ready

access of prisoners to federal habeas corpus, as distinct from

their access to tort remedies.”                 Martin, 96 F.3d at 855-56.

Finding these reasons persuasive, this Court held that the PLRA did

not apply to § 2255 proceedings.             Cole, 101 F.3d at 1077.

        Not long after our holding in Cole regarding section 2255

actions, we addressed whether the PLRA applied to section 2254

proceedings.       Carson, 112 F.3d 818.        In that case, we opined that

all the rationales set forth in Cole for not applying the PLRA to

section 2255 actions “apply with equal, if not greater, force to 28

U.S.C. § 2254 petitions . . . .”             Therefore, we held that the PLRA

did not apply to section 2254 proceedings.

        Likewise, we believe the above stated reasons for not applying

the PLRA to sections 2254 and 2255 cases would also apply to habeas


        8
        We recognize that the full district court filing fee for
habeas petitions, including those filed pursuant to section 2241,
is only five dollars.     Although five dollars is a very small
amount, “if one does not have it and is unable to get it the fee
might as well be [an exorbitant sum].” Smith v. Bennett, 365 U.S.
708, 712, 81 S.Ct. 895, 897 (1961). On appeal, the filing fee is
$105.

                                         7
petitions brought pursuant to section 2241.                There is, however, a

split in the circuits on this issue.

     The Tenth Circuit held that “[b]ecause the nature of a § 2241

proceeding is the same as § 2254 and § 2255 proceedings,” § 2241

actions are not “civil actions” within the meaning of the PLRA.

McIntosh v. U.S. Parole Commission, 115 F.3d 809, 911 (10th Cir.

1997).    Recognizing that “a § 2241 attack on the execution of a

sentence may challenge some matters that occur at prison, such as

deprivation of good-time credits and other prison disciplinary

matters,” the Tenth Circuit nevertheless opined that this does not

make a § 2241 action like a “condition of confinement” lawsuit.                   An

execution-of-sentence      claim   is       still   challenging     the   fact   or

duration of a prisoner’s confinement.                The prisoner is seeking

earlier release as opposed to monetary compensation for prison

conditions.

     On the other hand, the Seventh Circuit held that the PLRA did

apply to section 2241 proceedings.            Newlin v. Helman, 123 F.3d 429

(7th Cir. 1997).     In that case, the petitioner argued that the

parole commission had miscalculated his mandatory release date.

The Seventh Circuit believed that challenges to the denial of

parole did not affect the validity of a criminal sentence and that

such litigation could not be deemed a “functional continuation of

the criminal prosecution.”          Although it conceded that parole

affects   the   duration   of   confinement,         the    Court   likened      the

petitioner’s challenge to his parole calculation to a challenge to

the revocation of good time credits, which, in a previous opinion,


                                        8
it had stated in dicta was a “civil action” for the purposes of the

PLRA.

     Very recently, the District of Columbia Circuit issued a

persuasive opinion aligning itself with the Tenth Circuit and

rejecting the analysis of the Seventh Circuit. Blair-Bey v. Quick,

__ F.3d __ 1998 WL 412488         (D.C.Cir. July 24, 1998).     The District

of Columbia Circuit took issue with the purported distinction the

Seventh Circuit had attempted to draw between “criminal” and

“civil” habeas petitions, stating that there was no authority for

the proposition, and thus, “[t]here is no evidence that Congress

might have relied on a preexisting distinction between “criminal”

and “civil” habeas corpus petitions when it enacted the PLRA.              Nor

is there any indication that Congress itself intended to establish

any such distinction in the PLRA.”           Id. at *4-5.9

     We agree.          In fact, the legislative history of the PLRA

indicates       that   Congress   was   interested   in   discouraging   suits

involving frivolous challenges to prison conditions.               See e.g.,

United States v. Simmonds, 111 F.3d 737, 743 (10th Cir. 1997)

(referencing Senator Dole’s statement in regard to limiting such

prison condition suits involving a challenge to the amount of

storage space and the now infamous creamy peanut butter versus

chunky peanut butter controversy).10          Further, as we recognized in

        9
        Additionally, “the PLRA contains several other provisions
directed specifically at prison conditions litigation . . . but
makes no specific reference anywhere in the Act to challenges to
the fact or length of confinement.” Blair-Bey at *5.
        10
             141 Cong. Rec. S7498-01, S7524 (daily ed. May 25, 1995).


                                         9
Carson, the AEDPA, which became effective two days prior to the

PLRA, set forth separate procedures for addressing abuses of the

habeas process, strongly suggesting that Congress never intended

for the PLRA to apply to habeas petitions.               112 F.3d at 820.

       Our case law indicates that claims regarding denial of parole

(and loss of good time credits) sound in habeas.             We have explained

that    although     a   §   1983   suit      can   be    used   to   challenge

unconstitutional parole procedures, when a prisoner challenges the

result of a specific defective parole hearing or the board’s rules

and procedures that affect his release, and resolution would

automatically      entitle   him    to    accelerated      release,   then   the

challenge must be pursued in a habeas corpus proceeding. Orellana

v. Kyle, 65 F.3d 29 (5th Cir. 1995); see also In re: Cain, 137 F.3d

234 (5th Cir. 1998) (holding that a prisoner should seek redress

for loss of good conduct credits through a habeas proceeding).

       Here, the bottom line is that Davis seeks accelerated release

from prison.       Davis’s challenge to the execution of his sentence

therefore most certainly is a challenge to the duration of his

confinement--not to a condition of his confinement.               As such, his

claim sounds in habeas, specifically, a section 2241 proceeding.

Although claims brought under section 2241 do not challenge the

validity of a conviction or sentence because the error complained

of did not occur during the criminal proceedings, we believe such

claims are more akin to claims brought pursuant to sections 2254

and 2255 than they are to claims challenging conditions of a

prisoner’s confinement brought in civil rights suits under 42


                                         10
U.S.C. section 1983.   Simply put, habeas claims involve someone’s

liberty, rather than mere civil liability. Cf. O’Neal v. McAninch,

115 S.Ct. 992, 996 (1995) (comparing the stakes involved in habeas

proceedings to those in civil cases in the context of discussing

the standard of review in a habeas case).

     In short, because the alleged error affects the duration of

confinement, a section 2241 claim is more closely related to other

habeas claims brought pursuant to sections 2254 and 2255 than

claims challenging conditions of confinement.   We see no reason to

distinguish a section 2241 proceeding from the other types of

habeas proceedings.    Accordingly, agreeing with the Tenth and

District of Columbia Circuits, we hold that because the nature of

a section 2241 proceeding is the same as those under sections 2254

and 2255, section 2241 proceedings are not “civil actions” for the

purposes of section 1915.   The PLRA thus does not apply to section

2241 proceedings.

          C.   ABUSE OF THE WRIT

     As set forth above, Davis is attempting to raise the same

grounds for relief that he raised in his second section 2241

petition, which was deemed an abuse of the writ.   In his brief, he

does not specifically argue that the district court erred in

holding that he had abused the writ.   His sole argument is that the

court erred in construing the petition as a habeas petition. Under

these circumstances, we need not determine whether the gate-keeping

provisions of the AEDPA apply to the instant petition, Davis’s

third section 2241 petition, because it clearly constitutes an


                                11
abuse   of   the   writ   either   under   our   pre-   or   post-AEDPA

jurisprudence.

     In conclusion, we find that the PLRA does not apply and that

Davis’s third section 2241 petition constitutes an abuse of the

writ.   We therefore DENY his motion to proceed without prepayment

of filing fees and DISMISS the appeal as an abuse of the writ.




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